Arms Trade Treaty to Come into ForcePosted: September 25, 2014 Filed under: Nuclear 20 Comments
Just a quick note, and a hat tip to Susan Waltz at Michigan, on the news that the Arms Trade Treaty finally received the requisite number of ratifications today, and will therefore come into force on December 24, 2014. A Christmas present to the world!
See the UN announcement here.
This is certainly good news…….but I do wonder how many of those states that have ratified have also put in place the domestic legislation necessary to give real meaning to the ATT. States that ratify promptly are frequently at fault in that respect. Is anyone monitoring this? Just curious.
According to the official website of United Nations Office for Disarmament Affairs (UNODA), the current statistics of the Arms Trade Treaty (“ATT”) is that: the number of signatory states is 121 and the number of state parties is 53. (http://disarmament.un.org/treaties/t/att, visited on September 28, 2014) If one merely looks at the number, he may be quite satisfied with the current status of this treaty, and may also be optimistic about its future. However, after carefully examining the lists of signatory states and state parties, I feel disappointed.
Military powers, like China, India, Israel, Russia, have neither signed nor ratified it. The United States has signed but not ratified it yet. Further, Article II Section 2 of the US Constitution stipulates that the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur”. That is to say, while the President has the power to sign treaties, he may only ratify them if at least two-thirds of the Senate approve. One may seriously doubt whether the Senate will prove the ratification of ATT. It reminds me the Rome Statute of the International Criminal Court. The United States signed the Rome Statute in 2000, but has never ratified it. Moreover, the Government of United States expressly stated: “the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000.” (See the official website of United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#11) The United States has not made such statement on ATT, and thus whether it will finally ratify ATT remains to be seen. But at least we can conclude that currently top 4 world military powers, namely, the United States, Russia, China and India, (according to Global Firepower Ranking, available at http://www.globalfirepower.com/) are ALL NOT bound by ATT. It is also very similar to the current status of the Rome Statute. Although there are 139 signatories and 122 parties, without the ratification of powerful states like the United States, Russia, China, India and Israel, the significance of this treaty and its true impact on the international community is in doubt.
(A student of Dr. James Fry’s course “Arms Control and Disarmament Law” at University of Hong Kong)
I agree that enforcement will be an issue, but this is often the case with any international treaty. Although the US has not ratified the Rome Statute, the ICC is still recognized as a legitimate institution internationally (despite its various flaws).
Although powerful states such as the US, Russia, China, India and Israel have not ratified the ATT, I am still optimistic about the normative value of the treaty. I think it is still a meaningful step towards disarmament, particularly with respect to small arms and light weapons.
Nonetheless, enforcement and reporting will undoubtedly remain problematic, particularly given the vague language of Articles 13 and 14 on Reporting and Enforcement. Although the reporting obligations of states are relatively clear, the obligation to “take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty” outlined in Article 14 is open to interpretation, and is too vague to meaningfully enforce.
I am so glad to see the heated discussions here! I enjoy reading them.
Here, I would like make some comments on Megan’s reply. Megan says: “enforcement and reporting will undoubtedly remain problematic, particularly given the vague language of Articles 13 and 14 on Reporting and Enforcement…[T]he obligation to ‘take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty’ outlined in Article 14 is open to interpretation, and is too vague to meaningfully enforce.”
I agree with Megan that reporting is problematic and Article 13’s language is vague. However, I do not think the same problem exists with Article 14. At least, it is not a problem of ATT. Even if there is a problem, it is the problem of treaty law as a whole, not of any particular treaty.
It is an issue of relationship between international law and municipal law. Generally speaking, states are under an obligation to act in conformity with the rules of international law and will bear responsibility for breaches of it, whether committed by the legislative, executive or judicial organs and irrespective of domestic law. (See e.g. the Exchange of Greek and Turkish Populations case, PCIJ, Series B, No. 10, p. 20,and the Finnish Ships Arbitration, 3 RIAA, p. 1484.) Nevertheless, municipal laws of different states take different attitudes towards international law. Since our focus here is on treaty law, let’s put customary international law aside and solely discuss treaty law.
The situation as regards treaties is complex, as different attitudes are maintained by different states. Needless to say, common law and civil traditions are largely different with regards to this matter. Even within common law jurisdictions or civil law jurisdictions, practice still varies. [See Malcolm N. Shaw, International Law (6th ed., 2008, Cambridge University Press), pp.139-179. Shaw has summarized the practice of numerous common law and civil law jurisdictions.]
In some states, certain treaties will operate internally by themselves while others must undergo a process of domestic legalization (through congress legislation). For example, in the United States, doctrines as to the understanding of treaty law are founded upon the distinction between “self-executing” and “non-self-executing” treaties. The former are able to operate automatically within the domestic sphere, without the need for any municipal legislation, while the latter require enabling acts before they can function inside the country and bind the American courts. Self-executing treaties apply directly within the United States as part of the supreme law of the land, whereas those conventions deemed not self-executing are obliged to undergo a legislative transformation. [See, for example, Foster v. Neilson 27 US (2 Pet.) 253, 311, 7 L.Ed. 415 (1829); United States v. Percheman 32 US (7 Pet.) 51 (1833); United States v. Postal 589 F.2d 862, 875 (5th Cir.1979), cert. denied, 444 US 832 and Linder v. Portocarrero 747 F.Supp. 1452, 1463.]
There are also states where legislation is needed for virtually all treaties. In the UK, for instance, before a treaty can become part of English law, an Act of Parliament is essential. This fundamental proposition was clearly spelt out by Lord Oliver in the House of Lords decision in Maclaine Watson v. Department of Trade and Industry: “Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation.” ( 3 All ER 523, 544–5; 81 ILR, p. 701)
Theories and practices on this issue are extremely complicated. But the conclusion I want to make here is very simple. How to make a treaty a part of municipal law varies from state to state. The only thing a treaty can do is to require each state party to “take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty”, just like the ATT does. It is impossible for any treaty to require state parties to somehow immediately turn this treaty into national law, like magic! Nor is it possible for any treaty to set forth an unambiguous, unequivocal, universally recognized and accepted method to incorporate the treaty into municipal law. This matter is simply under the sovereignty of each state.
(A student of Dr. James Fry’s course “Arms Control and Disarmament Law” at University of Hong Kong)
I think the ATT is a meaningful step towards restricting and regulating international arms trade, despite its deficiencies. Negotiations of an international agreement regulating trade in conventional arms began as early as the mid-1990s. (http://www.armscontrol.org/factsheets/arms_trade_treaty)
Amnesty International has lobbied and campaigned since the mid-1990s for an Arms Trade Treaty. (http://www.amnesty.org/en/news/un-landmark-arms-trade-treaty-become-reality-50th-ratification-2014-09-25)
ATT is the first legally binding international treaty that regulates arms trade. While only five of the top ten arms exporters, including France, Germany, Italy, Spain and the UK, have ratified the ATT, when the treaty is in force and becomes an international norm, it is unlikely that it will be ignored completely. There will be pressure on other states that have not signed and/or ratified.
I agree. We can only be cautiously optimistic about this fact. However, it does not only depend on whether the ATT is finally implemented into domestic legislation. The treaty itself involves some vague legal concepts that can be used by national governments to legally cover irresponsible arms exports in the future. See Art. 7 (1) (a) ATT, which offers a lot of interpretative space for potential abuse.
Response to enforcement issue of the ATT:
The ATT establishes several mechanisms for States Parties to regulate their arms trade and comply with their treaty obligations, namely establishment and maintenance of national control systems which include national control lists, designation of competent national authorities and national points of contact. (See Art. 5) National control systems and national points of contact report to the Secretariat. (See Art. 5) In theory, these mechanisms and the reporting system seem viable and promising. However, a supervising mechanism is missing. The Secretariat only assists States Parties in implementation of the treaty through distributing the reports and making available of the lists of national points of contact, facilitates international assistance and conference of States Parties, and promotes international cooperation. (See Art. 18) The Secretariat lacks the power of supervising implementation of the treaty provisions and the power of making recommendations to States Parties based on their reports. If a State Party fails to fulfil its obligations under the treaty, the Secretariat has no way to act respectively. This makes the Secretariat weak and undermines the regulative power of the treaty.
After carefully assessing the treaty, I think enforcement through a treaty body is not the main idea in the treaty. Enforcement section only contains one short sentence which makes it clear that enforcement is through national laws and regulations. The main idea of the treaty is to offer an international platform for communication and cooperation between States Parties. The treaty emphasises international cooperation and assistance, conference of States Parties, and dispute settlements. (See Art. 15, 16, 17 & 19) The Secretariat is mainly responsible for distributing reports and making available the lists of national points of contact, facilitating international assistance and the conference, and promoting international cooperation. (See Art. 18) The treaty also repeatedly mentions making available national reports and national control lists to States Parties. This improves transparency of arms trade between States Parties that promotes international cooperation and facilitates enforcement of the treaty through peer assessment. Therefore, instead of being a strong enforcing mechanism of regulating international arms trade, the treaty aims at promoting international cooperation, improving transparency, and enforcing provisions through peer assessment.
Response to Livio Bucher’s comment:
Contrary to Livio Bucher’s view, I consider Art. 7 (1)(a) as a general principle which is meant to be vague and contains a wide range of circumstances where States Parties should prevent export of arms. Even though Art. 7 (1)(b) provides a list of specified situations under which States Parties shall not authorise export, we cannot guarantee that all circumstances where States Parties should prevent export fall within the list. Art. 7 (1)(a) sets a boundary of circumstances under which States Parties should not authorise export. It is meant to be open for interpretation in case non-predictable circumstances happen which falls outside of the list proscribed in Art. 7 (1)(b). Therefore, instead of viewing the vagueness in Art. 7 (1)(a) as potentials for future abuse, I consider the provision as a helpful tool for regulating arms export.
I’m sorry Brooke, but I have to disagree with you on the consequences and importance of Art. 7 (1) (a) ATT. My point is, that Art. 7 (1) (a) ATT is insofar vague, as it gives states a comfortable leeway to interpret the decision to refuse to export but at the same time gives them legitimation for their exporting decision. Arms export might arguably promote peace respectively the denial to export might do it as well. First of all, Art. 7 (1) (a) ATT legitimates political discretion and that makes it dangerous. Secondly, and more importantly, such export decisions most probably take place when a conflict is going on and in such circumstances, given the time pressure, steps that guarantee, that those weapons will remain in the “right hands” will be implemented, if ever, negligently. In other words, Art. 7 (1) (a) ATT might potentially undermine one of the most important purposes of the ATT, namely the diversion of arms (see Art. 1 ATT). That’s why I think, that this provision is not at all a helpful tool for regulating arms exports but rather harmful.
Livio, you do not have to be sorry. This is an academic debate.
I would insist that Art. 7 (1)(a) is not harmful for the objects and purposes of the ATT. It is misleading to look at and interpret one provision in any treaties without assessing the whole context. Provisions of one treaty should be read in conjunction of other provisions of the treaty. For Art. 7 (1)(a), I think it is not accurate to read this provision without also looking at Art. 7 (1)(b). Art. 7 (1)(a) simply provides a very general boundary for states when it comes to exporting arms. Art. 7 (1)(b), building on the boundary of Art. 7 (1)(a), goes further to provide more specific standards. I think it is quite impossible and inflexible to have some very specific provisions on the prohibition of arms exportation since it is unlikely that all illegal circumstances can be predicted.
As to your second point, I think it is inaccurate to say that most export decisions take place when a conflict is going on. Arms trade is part of commercial trade between states. It happens often. States update and expand their arms all the time even during peaceful times.
And could you further explain how Art. 7 (1)(a) could undermine one of the objects of ATT, namely “Prevent and eradicate the illicit trade in conventional arms and prevent their diversion?” I do not see how accessing arms exports in relation to international peace and security can help arms diversion.
I would also consider Article 7(1)(a) as a general principle, in order to allow state parties to encompass situations that cannot be foreseen. It provides flexibility for the state parties when assessing whether the export should be authorized. It is needed as a counterpart to Article 7(1)(b), which provides for specific circumstances in which an export is to be refused (subject to Article 7(2) and Article 7(3)).
Also, I think that Article 7 should be read as a supplement or extension of the prohibitions provided in Article 6. Article 7(1) states that: If the export is not prohibited under Article 6, each exporting State Party…shall…assess the potential that the conventional arms or items…” While giving some leeway to state parties, Article 7(1)(a) would not allow state parties to legitimate exports that are prohibited by Article 6.
I am afraid I have to disappoint Megan M. I don’t believe the ATT will have any substantial restrictive impact on the trade in small arms and light weapons (legitimate or otherwise). I will be absolutely delighted if time proves me wrong. In addition, the ATT is absolutely nothing to do with disarmament – it is about controlling the arms trade not eliminating it.
I agree, that the ATT is clearly and first of all an “arms (trade) control” treaty. However, in accordance with Art. 16 (1) ATT, the ATT has clearly a connotation of disarmament and therefore has something to do with it. (“In implementing this treaty, each state party may seek assistance including legal or legislative assistance, institutional capacity-building, and technical, material or financial assistance. Such assistance may include stockpile management, disarmament, demobilization and reintegration programmes, model legislation, and effective practices for implementation. Each state party in a position to do so shall provide such assistance, upon request.”)
Point taken that the word ‘disarmament’ is mentioned. I still maintain, however, that the ATT is not about disarmament. The fact that it suggests assistance be provided with disarmament matters certainly does not make it a disarmament treaty. Arms control and disarmament are fundamentally different things.
I think the ultimate goal of the ATT is disarmament. By regulating and restricting arms trade, the ATT will be effectively reducing the circulation of conventional weapons. This limits the number of states that will own these weapons. Of course, some states can be armed without importing weapons. However, while some states can produce and manufacture their own conventional weapons from scratch, others will be unable to do so due to various reasons. Therefore, overall, the ATT will enhance overall international disarmament on conventional arms.
In addition, to quote Ban Ki-moon: “This is victory for the world’s people. The ATT [..] will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law. And it will provide much-needed momentum for other global disarmament and non-proliferation efforts.”
Can someone highlight for me the beneficial aspects of this treaty? If I understand this treaty correctly, it’s primary effect would be to allow weapons manufacturing states, at their sole discretion, to unilaterally welsh on signed arms contracts with clients with a sovereign nation state as long as they waive their hands and reference some kind of condemnatory screed which would be duly issued by some shady ‘human rights’ organisation. Do we really need add to the legal arsenal of to the largest weapons manufacturing states in the world?
Additionally, it would allow countries with a larger soapboxes and international clout a platform to target smaller weapons manufacturing states, and their clients, that ‘get out of line’.
To take an example from recent events, when ISIS began storming Iraq a couple of months ago, and Baghdad was seeking delivery of arms from the US that it had already paid for, but hadn’t been delivered, Obama sagely instructed Maliki that he needed to be ‘more inclusive’ towards the ISIS hordes that were rampaging through his country(the crucial weapons systems that could have made difference weren’t small arms but fighter jets that could have destroyed ISIS caravans travelling through the desert before they ensconced themselves in built up cities). Later on, when ISIS was threatening Erbil, Iran delivered an emergency shipment of arms to the the Kurdish Regional Government, while other countries were busy deciding if they were still supposed to be pretending that ISIS and it’s close cousins were actually cuddly liberals who had gotten a bad rap. Now Iran and the KRG are technically in violation of improperly passed security council resolutions which forbid member states from buying any arms from Iran, but even if that weren’t the case, it’s plain as day that given the KRG’s recent attempted land grab in Mosul and the racial xenophobia that underlines ISIS’s ideology, that there exists a substantial risk that any delivery of arms to the KRG would be used in ‘violations of international human rights’ or at the least, ‘seriously impair socioeconomic development and poverty reduction’ of the KRG and it’s surrounding areas.States like the US, Saudi Arabia, Turkey, and Qatar, who had up to that moment being giving succor to ISIS, would then have the beginnings of a legal basis on which to take action against Iran, whose delivery of arms to the KRG probably saved some tens of thousands of lives which would have otherwise been lost in the span of a few weeks.
Or to take another example from a little further back, about ten years ago the West launched a full fledged campaign to destroy the Sudan, a campaign that culminated with ICC charges against Omar Bashir, that quickly went off the front pages of all the newspapers when Bashir relented and allowed a sovereignty referendum in the south, which was duly credited as victory for the separatist faction with by a mind blowing 98% margin of victory. After independence, the newly formed oil rich government of South Sudan, with the complicity of it’s Western and Israeli patrons, launched a campaign of terror and genocide against it’s own people that dwarfed the levels of violence that had preceded it. Of course this orgy of violence was met with complete silence from all the human rights outfits that had become specialists in crying crocodile tears for Darfur. Now a crucial component of this successful Western led campaign to destroy Sudan involved pressuring China into stopping it’s trade with Sudan, which involved oil and weapons, on largely specious ‘Human Rights’ grounds. Do we really want to make it even easier for the West to create more South Sudan’s? How in the world can we expect this law to make anyone more safe?
I have three points to make.
1. The first is inspired by very pertinent comment by Steven Haines about domestic implementing legislation, but is a bit wider: we should be concerned about national implementation systems. The task is not just to monitor the situation, but also to help insure that the principles, objectives and specific requirements of the treaty are duly respected. I am afraid at the moment there is no one to do that. Hopefully, after EIF, the secretariat (yet to be established, would be responsible, but I doubt states parties are willing to give it sufficient resources. Therefore it will have to be a combination of of the secretariat, qualified NGOs and states parties themselves. However, the role of the secretariat must that of leadership and monitoring, because states parties and NGOs, whom they finance to work on national implementation of other treaties, tend to do the job in the way, which they prefer from their national perspectives.
2. Some coordination role is also necessary for the work on universality of the treaty, which promises to to be rather difficult: a number of major suppliers of arms do not seem inclined to join. This work must be conducted with consistency, imagination and a good strategy. The secretariat again, rather than states parties, should be the motor, but coordinate closely with the latter.
3. Particular attention should be paid to building the culture of compliance and to developing, in each state party, the national constituencies. Quite recently, in the midst of the last war in Gaza some of the signatory states had their internal debates about possible limitations on arms sales to Israel. In those debates the ATT was hardly mentioned. In the meantime, in accordance with the law on the treaties, these states are already expected not to act contrary to the object and purpose of the treaty, even if it is not yet in force and they are not yet parties. It is unfortunate that some of the treaty’s most articulate proponents start forgetting about it when politically convenient.
I just wanted to comment/clarify on point 3 of this post. I don’t want to be too critical about the ATT but as far as I am informed, the only serious arms exporters that have signed and ratified the ATT are the European states e.g. Germany and Great Britain or France, which have already national legislation in place that is arguably as robust as the scope and purpose of the ATT. Ultimately, the ATT is aimed at creating a level playing field for all arm exporters. That’s why universality of adherence is of utmost importance. I don’t know which states you are referring to, but if it were some of the above mentioned European states, then the fact that the ATT is hardly mentioned, shouldn’t bother, since their national legislation is more robust than the ATT and binding to them. Secondly, in accordance with the Vienna Convention on the law of treaties i.e. its Art. 25, a treaty can have provisional binding effect on a state, when a.) the treaty so provides or b.) the negotiating states have in some other manner so agreed. Art. 23 ATT stipulates, that any state may at the time of signature or the deposit of instrument of ratification (…) declare, that it will apply provisionally Art. 6 and Art. 7 ATT pending the entry into force of this treaty for that state. Thus, states are not generally and legally expected to act in compliance with the object and purpose of the treaty when having signed the ATT and it is not yet in force. Some states declared that they will apply the ATT provisionally, some did not. Again it depends on which states you are referring to.
I do thing that the ATT will be a really test for public international law and arms control law in particular. But the relatively speedy entry into force of the ATT is a good thing to assess its effectiveness or weaknesses.
This is good news for the World! The lack of regulation in this area was one of the major causes of violence in regions like Africa and Central America. Definitely the hardest part will be enforcement and with it the cooperation between nations to supervise the arms trade. Also, the big weapons exporting countries should be members of this treaty otherwise there will not be a big impact.
We are considering the Arms Trade Treaty and I agree with comments saying that this has nothing to do with disarmament. Much the reverse. The ATT, in my opinion, has been enacted to regulate the Arms Trade. But ‘Trade’ it is and will continue to be.
One view point could be that rather than having no regulations to bind members states, it is a good first step to have in place such a body of regulations governing the trade in arms. However, until the world’s major exporters of arms sign and ratify this treaty, there is not much regulation in the Arms Trade that we can look forward to.
The object of the Treaty is to ‘Establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms’ and ‘to prevent and eradicate the illicit trade in conventional arms and prevent their diversion’ for the purpose of ‘Contributing to international and regional peace, security and stability, reducing human suffering, promoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms, thereby building confidence among States Parties’
On a reading of the Object of the ATT, it seems that the Treaty seeks to establish standards regulating international trade in arms and it also seeks to prevent and eradicate illicit trade in conventional arms without restricting it to the international domain. This means that the ATT seeks to also regulate the domestic arms trade.
As for article 7(1)(a), I am also of the opinion that its provisions do not run counter to the object and purpose of the ATT (Article 1). Article 7 is an assessment provision to be undertaken by the States pursuant to no problems with authorisation of a transfer under Article 6. Pursuant to there being no prohibitions to the transfer of weapons under Article 6, there are further obligations on a member State according to Article 7.
I do feel that the lack of enforcement mechanisms might be an issue in establishing the highest possible common international standards for regulating or ‘improving’ the regulation of the international trade in conventional arms.